Matter of Franz v Annucci

[*1] Matter of Franz v Annucci 2021 NY Slip Op 50013(U) Decided on January 4, 2021 Supreme Court, Albany County Zwack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 4, 2021
Supreme Court, Albany County

In the Matter of the Application of Brandon Franz, Petitioner,

against

Anthony Annucci, ACTING COMMISSIONER FOR THE NEW YORK STATE DEPARTMENT OF CORRECTIONS, Respondent.



4574-20



Appearances:

Brandon Franz,

Petitioner and Self Represented Litigant

Hon. Letitia James

Attorney General of the State of New York

Attorneys for Respondent

Chris Liberati-Conant, Esq., of counsel

The Capitol

Albany, New York 12224
Henry F. Zwack, J.

The petitioner and inmate Brandon Franz brings this Article 78 petition [*2]challenging the respondent's determination to suspend programs during the current COVID-19 pandemic. Specifically, the petitioner complains that he was only days away from obtaining his Earned Eligibility Certificate (Merit Time) when the program was suspended. Because the petitioner could not complete the program, he was denied Merit Time on June 24, 2020 after a review. The petitioner argues that the respondent's actions were arbitrary and capricious, and that the Court should award his certificate for Merit Time. In support of his Verified Petition, the petitioner has attached copies of I.L.C. minutes, in which the Executive Committee indicated only that it was looking into extending suspended ASAT program credits to March 31, 2020. The respondent opposes, and argues that the Petition fails to state a cause of action, namely that the petitioner is not entitled to Merit Time because he did not complete his required programming.[FN1]

For the reasons that follow the Court denies the relief demanded in the Article 78 Petition and dismisses the Petition in its entirety.

As an initial matter, an inmate has no right to demand or require a merit time allowance, and the decision by the respondent "as to the granting, withholding, forfeiture, cancellation or restoration of such allowances shall be final and shall not be reviewable if made in accordance with the law" (Correction Law §803[4]). Even with earned merit time, there is also no guarantee that the petitioner would be eligible for parole, and a parole determination made according to the appropriate statutory factors may not be disturbed unless the petitioner can demonstrate that the determination is so irrational it borders on impropriety (Wade v Stanford, 148 AD3d 1487 [3d Dept 2017]). Further, an inmate has no constitutional liberty interest to programs, such as the merit time allowance (Lown v Annucci, 183 AD3d 1246 [4th Dept 2020]).

What an inmate does have under the 8th Amendment to the United States Constitution is the right to be confined under conditions that "provide for ...basic human needs (including) food, clothing, shelter, medical care and reasonable safety" (Helling v McKinney, 509 US 25, 32 [1983], citing and quoting DeShaney v Winnebago County Dept. Of Social Services, 489 US 189, 199-200 [1989]). The respondent must act with reasonable care to mitigate a risk created by a seriously threatening prison condition which it knows poses an excessive risk to the health and safety of inmates (US Const. Amend 14; People ex rel. Squirrell v Langley, 68 Misc 3d 498 [Sup Ct, Putnam Co., 2020]). All said, and certainly in this time of an unprecedented pandemic, that the respondent suspended programming in furtherance of inmate safety is not in [*3]any way arbitrary or capricious,. However viewed, the respondent acted reasonable and well within its statutory authority.

Accordingly, it is

ORDERED, that the relief demanded in the Article 78 petition is denied, and the Petition is dismissed in its entirety.

This constitutes the Decision and Order of the Court. This original Decision and Order is returned the Attorney General for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated: January 04, 2021

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice

Papers Considered:

1. Order to Show Cause dated August 3, 2020; Verified Petition dated July 17, 2020 with attachments;

2. Verified Answer dated October 28, 2020 with Exhibits "A" and "B"; Memorandum of Law. Supplemental Affidavit of Megan MacTavish dated November 9, 2020. Footnotes

Footnote 1:The record also amply shows that the petitioner failed to exhaust his administrative remedies — a defense not raised by the respondent...